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Can Another Provider's Actions Reduce Your Liability?
Pointing fingers at co-defendants may pay off for you, but comes at a price
Imagine being sued by a patient for an alleged act of malpractice, but evidence is introduced in the courtroom that leads the jury to believe another practitioner not yourself is the one who is truly at fault.
The legal concept of "comparative fault" may include contributory negligence by the patient, but it also takes into account the conduct of other practitioners who treated the patient, even if the other providers are not named in the lawsuit.
"Ohio also permits the jury to apportion fault to non-party defendants, if sufficient proof is presented as to their comparative fault," says Justin S. Greenfelder, JD, a health care attorney with Buckingham, Doolittle & Burroughs in Canton, OH.
In an ED malpractice case involving comparative fault, a patient presented hypotensive, tachycardic, and dehydrated with a history of nausea and vomiting. During the patient's stay in the ED, there was a physician shift change.
"The first ED physician initiated tests and fluid replacement. The second ED physician notified the on-call intensivist and facilitated the patient's admission to the hospital," says Chris DeMeo, JD, a health care attorney at McGlinchey Stafford in Houston, TX.
Following admission, the patient deteriorated, developed thromboses and gangrene secondary to septic shock, and ultimately had amputations of all four limbs. The patient sued both ED physicians, the hospital, the intensivist, and another physician who saw the patient after admission.
"The patient wound up with a two-front battle," says DeMeo.
If she asserted the ED physicians were primarily responsible for not diagnosing sepsis early enough, then she would reduce the liability of the hospital for post-admission events. On the other hand, if she argued the hospital was primarily responsible because of the care following admission, she would reduce the liability of the ED physicians.
In discovery, evidence developed that was more harmful for the post-admission care, and the plaintiff eventually non-suited the first ED physician.
Liability Is Lowered
Comparative fault "can include parties who have settled and / or parties who could have been sued, but were not," says DeMeo. "The percentage of responsibility that the jury attributes to one defendant naturally lowers each other defendant's ultimate liability."
In the case of a patient who died of a myocardial infarction after being sent home from the ED, for example, the ED physician may have consulted with the on-call cardiologist who concurred with the assessment. In addition, the patient may have exhibited new signs and symptoms while in the ED that emergency nurses failed to report to the physician.
"Assume further that the patient had told his primary care doctor, an internal medicine specialist, the day before about recurrent episodes of 'heartburn' for several weeks, and the physician did no work-up, but recommended antacids," says DeMeo.
In this example, the patient's family sues the hospital and the cardiologist along with the ED physician, and they do not sue the primary care doctor. After conducting discovery, the family settles with the cardiologist for $100,000.
"The jury will be asked to consider the negligence of at least the ED physician, the hospital and the patient," says DeMeo. "If the jury were to assign 40% to the ED physician, 40% to the hospital for the conduct of the nurse and 20% to the patient, each defendant would have to pay $400,000 before taking into account the cardiologist's settlement."
In some states, the defendants would have to make the strategic decision of whether to reduce the verdict to $900,000, and reduce their own liability to 40% of that amount, or $360,000, by deducting the cardiologist's $100,000 settlement, or to ask the jury to assign a percentage of responsibility for the death to the settling cardiologist.
"If the defendants believe the jury would assign more than 10% of responsibility for the death to the cardiologist, then they should submit the cardiologist as a 'settling defendant' for comparative fault purposes," says DeMeo. "Because if the jury attributes 20% to the cardiologist, 20% to the patient and 30% each to the ED physician and hospital, then the defendants would be liable for $300,000."
Most jurisdictions recognize the ability of the ED physician to "sue" the primary care physician even though the patient's family did not, says DeMeo. In Texas, the defendants can use the procedural device of naming the physician as a "responsible third party" without suing him.
"The jury can assign fault to a responsible third party, but that party will not owe the patient any money for that fault," says DeMeo. "Say the jury assigns 20% to the patient, 20% to the cardiologist, 10% to the primary care physician and 25% each to the ED physician and hospital. The ED physician's liability is now $250,000one quarter of the verdict."
In addition, most jurisdictions recognize that when a defendant's percentage of responsibility reaches a certain level, that defendant is "jointly and severally" liable such that it can be made to pay the entire judgment. In this example, if one of the providers was found to be 51% at fault, in Texas that provider could be made to pay the entire judgment.
"This situation becomes important when some providers have less insurance than others," says DeMeo. "The jointly and severally liable defendant has the ability to go against the other defendants to recover their share of the judgment, but faces the same collection problems the plaintiff would have."
Another scenario involve patients failing to adhere to primary care physicians' recommendations, either for treatment or follow-up care, that result in ED visits. "These cases demonstrate the importance of obtaining a patient's primary care and specialty care records, to evaluate the medical history that may be related to the subject emergency visit," notes J. Peter Kelley, JD, a health care attorney with Cambridge, MA-based Foster & Eldridge.
In cases where the plaintiff has already sued all potential defendants, DeMeo says that it is often more helpful to let the plaintiff's lawyer make a case against each defendant rather than trying to do it yourself.
"If a defendant has settled or been dismissed, you can point out that defendant's faults more aggressively," says DeMeo. "Generally, you will not be able to tell the jury that a defendant settled. But you can still put on a case against that defendant without having to worry that the settling defendant will fight back."
When a patient doesn't sue someone you believe is responsible for the injury, you can still make a case against that person without bringing him or her into the lawsuit by using the "the empty chair" defense.
"This strategy allows you to put on a case against someone without them attacking you," says DeMeo. "It may be easier for the jury to find that no one was at fault rather than finding that multiple parties were at fault in varying degrees."
Strategy Comes with a Price
"The advantage of lowering individual responsibility for the verdict comes at the price of taking a contrary position against your co-defendant," says DeMeo. "To lower your own percentage of responsibility, you have to place responsibility on the other provider."
This environment can lead to finger-pointing, which may ultimately help the patient's case.
"In fact, some plaintiff's lawyers purposefully sue multiple providers in order to create in-fighting among the defendants," says DeMeo. "Unfortunately, some defendants even negotiate dismissals or favorable settlements in exchange for 'dumping' on a co-defendant. This environment is exacerbated when the defendant actually chooses to bring another physician into the lawsuit."
DeMeo says that this situation is "less combative" in jurisdictions like Texas, where the defendant does not have to sue the physician to have the jury consider that person's conduct, "but the defendant still has to put on a case against his or her fellow physician."
For more information, contact:
Chris DeMeo, JD, McGlinchey Stafford, Houston, TX. Phone: (713) 335-2132. Fax: (713) 520-1025. E-mail: firstname.lastname@example.org.
Justin S. Greenfelder, JD, Buckingham, Doolittle & Burroughs, Canton, OH. Phone: (330) 491-5230. Fax: (330) 252-5520. E-mail: email@example.com.
J. Peter Kelley, JD, Foster & Eldridge, Cambridge, MA. Phone: (617) 252-3366. Fax: (617) 252-3377. E-mail: firstname.lastname@example.org.